MEMORANDUM DECISION May 15 2015, 7:57 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Bruce W. Graham Gregory F. Zoeller Graham Law Firm P.C. Attorney General of Indiana Lafayette, Indiana Katherine Modesitt Cooper Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
James Miske, Jr., May 15, 2015
Appellant-Defendant, Court of Appeals Case No. 79A02-1409-CR-619 v. Appeal from the Tippecanoe Circuit Court The Honorable Donald L. Daniel, State of Indiana, Judge Appellee-Plaintiff Cause No. 79C01-1401-FA-1
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-619| May 15, 2015 Page 1 of 27 Case Summary [1] James Miske (“Miske”) was convicted by a jury of Rape1 and two counts of
Criminal Deviate Conduct,2 as Class A felonies; Criminal Confinement, as a
Class C felony;3 Strangulation,4 Domestic Battery,5 and Intimidation,6 as Class
D felonies; and Battery7 and Resisting Law Enforcement,8 as Class A
misdemeanors. He now appeals.
[2] We affirm.
Issues [3] Miske raises four issues for our review. We restate and reorder these as:
1. Whether there was sufficient evidence to support Miske’s convictions for Rape and Criminal Deviate Conduct through the use or threat of deadly force, as charged; 2. Whether Miske’s convictions for criminal confinement, domestic battery, and battery are barred on double jeopardy principles;
1 Ind. Code §§ 35-42-4-1(a) & (b)(1) (West 2013). Miske’s offenses were committed prior to the July 1, 2014 effective date of statutory provisions our legislature revised in 2013. All statutory citations refer to the substantive provisions applicable based upon the dates of Miske’s offenses. 2 I.C. §§ 35-42-4-2(a) & (b)(1). 3 I.C. §§ 35-42-3-3(a) & (b)(1). 4 I.C. § 35-42-2-9(b). 5 I.C. §§ 35-42-2-1.3(a) & (b)(2). 6 I.C. §§ 35-42-2-1(a) & (b)(1). 7 I.C. § 35-42-2-1(a)(1). 8 I.C. § 35-44.1-3-1(a)(1).
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-619| May 15, 2015 Page 2 of 27 3. Whether the trial court erred when it sentenced Miske to consecutive sentences for offenses that were part of a single transaction under the continuing crime doctrine; 4. Whether the trial court abused its discretion at sentencing in finding certain aggravating circumstances, and whether Miske’s sentence is inappropriate in light of the nature of his offenses and his character.
Facts and Procedural History [4] Miske was engaged to V.P. Miske and V.P. shared a home in Lafayette, where
they lived with V.P.’s four children: three of these were V.P.’s children from
prior relationships, and the fourth child had been fathered by Miske.
[5] On January 3, 2014, Miske and V.P. argued about finances and parenting the
children. During the argument, Miske grabbed V.P.’s arm with enough force
that V.P. was bruised; Miske also scratched her and pushed her to the floor. By
the end of the argument, V.P. stated that she no longer wished to be engaged to
Miske, Miske agreed that he would move out, and the two went to sleep in
separate rooms.
[6] The following day, Miske left for work in the morning. During the morning,
Miske became agitated and asked for permission to leave work. He did so with
the intent to find someplace to live after moving out of the house he shared with
V.P.
[7] By around 2:30 on the afternoon of January 4, Miske had decided to visit the
Frankfort home of Gregory Linder (“Linder”), an acquaintance of Miske and a
longtime friend of V.P. Linder was in his garage, and he and Miske spent
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-619| May 15, 2015 Page 3 of 27 several hours talking and drinking beer and mixed drinks. Miske told Linder
that he was “done” with V.P. and that the relationship was “pretty much over.”
(Tr. at 151.) Miske was angry and repeatedly raised his voice during the
conversation, occasionally “marching around” and “hollering.” (Tr. at 153.)
[8] During the conversation, Miske expressed his anger about the behavior of
V.P.’s eldest daughter. He also expressed suspicion that V.P. had not been
faithful in the relationship, mentioning a specific individual whom Linder and
V.P. shared as a common friend; Linder tried to reassure Miske that he should
not be concerned about V.P.’s fidelity. At least once, Miske mentioned his
military training and stated that he enjoyed hurting people, and stated several
times that he was “a demon.” (Tr. at 156.) Miske also stated several times that
“he felt like putting his hands on” V.P. (Tr. at 160.)
[9] At around 6:30, Linder had become concerned for his own safety in light of
Miske’s behavior. Linder suggested that Miske leave, “take a chill pill” (Tr. at
157), calm down, and sleep in his truck that night. Miske asked Linder for
money; Linder gave Miske a few lottery scratch-off tickets and told him to
leave.
[10] From Linder’s home, Miske drove to a bar in Lafayette, Ace’s Pub. Miske
spent several hours at the pub, but was eventually asked to leave. Miske drove
back to the home he had been sharing with V.P.
[11] Miske arrived at the home in the early morning hours of January 5, 2014. V.P.
had put the couple’s infant daughter to sleep, and two older children were also
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-619| May 15, 2015 Page 4 of 27 asleep.9 V.P. was awake on the living room couch watching television when
Miske arrived.
[12] Miske entered the home and came into the living room, and pulled up a bean-
bag chair next to V.P.’s couch. V.P. smelled alcohol and cigarettes on Miske,
but did not respond to his entrance. Miske got up from the chair and began to
walk to the bedroom he had shared with V.P. He asked V.P. to have sex with
him, but she refused. Miske said he would find sex elsewhere, and went into
the bedroom to use his computer.
[13] After twenty or thirty minutes, Miske came out of the bedroom, grabbed V.P.
by her hair, and pulled her off the couch and onto the floor. Miske, a former
Marine who stood six-feet, three-inches tall, then began choking the five-feet,
three-inches-tall V.P. Miske sat on top of V.P. while pressing his hands around
her neck, and demanded to know about “David,” the friend V.P. and Linder
had in common. (Tr. at 176.) V.P. asked Miske to stop and tried to tell him
that she could not breathe, but Miske’s choking restricted her airflow.
[14] Miske’s yelling eventually awoke V.P.’s son, who came out to see what was
happening. V.P. asked Miske to stop because the child was watching, but
Miske continued to yell and throw V.P. around. Miske twice pulled V.P. off
the floor by her hair, threw her around so that her head hit a wall, and at one
point brought his arm down across the bridge of her nose. Miske choked V.P.
9 The fourth child was not present in the home at the time.
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-619| May 15, 2015 Page 5 of 27 multiple times, holding her on the ground while doing so. V.P. thought she
was going to die, and asked Miske to stop several times. V.P. told Miske that
she was afraid he would kill her, and said she would do whatever he wanted.
[15] At some point, Miske stopped choking V.P. and dragged her to the bedroom,
still pulling on her hair. Miske told V.P. to take off his boots, and then told
V.P. to remove his pants and to perform oral sex on him. Miske was still
holding V.P.’s hair, and forced her head down toward his penis.
[16] Miske next told V.P. to remove her pants and made her get on all-fours on the
bed. Miske briefly engaged in vaginal intercourse with V.P. He then began to
engage in anal intercourse with V.P., even as she “begged him not to.” (Tr. at
183.) V.P. complied with Miske’s demands because she was afraid, even as she
asked him to stop and told him that it caused her pain. While engaging in these
acts, Miske told V.P. that “this if [sic] for Mr. Meyers,” referring to the mutual
friend of V.P. and Linder. (Tr. at 184.)
[17] Miske proceeded to force V.P. to perform oral sex, vaginal sex, and anal sex
with him twice more. During this, Miske continued to hold V.P.’s hair, and
said “a lot of messed up things.” (Tr. at 184.) Eventually, Miske ejaculated
and stopped engaging in sexual conduct with V.P.
[18] After this, Miske and V.P. each sat on opposite ends of the bed from one
another. V.P. was crying, while Miske said he knew she would contact police
and that he would not kill her; Miske then said he was going to pray “because
he was getting ready to kill [V.P.].” (Tr. at 186.) V.P. told Miske that she
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-619| May 15, 2015 Page 6 of 27 would not call police; Miske then said she could call and he would not do
anything to her, but that he would not “go down without a fight.” (Tr. at 187.)
[19] V.P. begged Miske to go to sleep. Once V.P. was sure Miske was asleep, she
went back into the living room, grabbed her phone, and called police.
[20] At around 4:30 a.m., Lafayette Police Officer Amanda Deckard (“Officer
Deckard”) was the first officer to arrive at the home; a second officer, Officer
Stansfield, arrived soon after. Officer Deckard spoke with V.P. and, based
upon this discussion, informed Officer Stansfield that they would arrest Miske,
who was still asleep in the bedroom.
[21] Officers Deckard and Stansfield entered the bedroom where Miske was
sleeping, turned on the lights, and attempted to wake Miske, informing him
numerous times that they were from the Lafayette Police Department. Miske
gradually awoke, and began fighting with the two police officers, eventually
pinning one of his arms underneath his body.
[22] As this struggle occurred, Tippecanoe County Sheriff’s Deputy Randy Martin
(“Deputy Martin”) arrived at the home. As he got out of the car, he heard
shouting coming from inside the house and, when he entered the home, found
Miske struggling with Officers Deckard and Stansfield. Deputy Martin used his
Taser device to administer a drive stun directly to Miske’s body; Miske ceased
struggling, and was arrested.
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-619| May 15, 2015 Page 7 of 27 [23] After Miske was arrested, Officer Deckard transported V.P. to a local hospital.
There, V.P. was examined by Diane Robinson (“Robinson”), a sexual assault
nurse-examiner. Robinson determined that V.P. had suffered injuries to her
neck consistent with strangulation, as well as bruising to her cervix consistent
with blunt-force trauma and injury to her anus. When V.P. brushed her hair, a
chunk of hair fell off her head. Robinson concluded that the injuries V.P. had
sustained were consistent with having been a victim of sexual assault.
[24] On January 10, 2014, Miske was charged with Rape, two counts of Criminal
Deviate Conduct, Criminal Confinement, Intimidation, Strangulation,
Domestic Battery, Battery, and Resisting Law Enforcement. (App’x at 18-27.)
[25] A jury trial was conducted from July 8 to July 10, 2014. At the conclusion of
the trial, the jury found Miske guilty of all the charged offenses.
[26] On August 12, 2014, the trial court conducted a sentencing hearing. At the
hearing’s close, the trial court entered judgments of conviction against Miske on
all nine guilty verdicts, and adjudicated him a Sexually Violent Predator.
Miske was sentenced for forty-five years imprisonment for Rape, forty-five
years imprisonment for each of the two counts of Criminal Deviate Conduct,
six years imprisonment for Criminal Confinement, two years imprisonment for
Intimidation, two years imprisonment for Strangulation, two years
imprisonment for Domestic Battery, one year of imprisonment for Battery, and
one year of imprisonment for Resisting Arrest. The trial court ran all the
sentences consecutively.
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-619| May 15, 2015 Page 8 of 27 [27] On August 22, 2014, the trial court entered an order clarifying the sentencing
order. In the clarification, the court reiterated that all of the sentences were to
run consecutively, but:
The Defendant is sentenced to forty-five (45) years on each of the A felonies [Rape and two counts of Criminal Deviate Conduct], for a total of one hundred and thirty-five (135) years. On the remainder of the offenses, the Defendant’s sentence is capped at a total of ten (10) years. The one hundred thirty-five (135) years on the A felonies and the ten (10) years on the remaining offenses shall all be executed at the Indiana Department of Corrections [sic] for a total of one hundred forty-five (145) years. (App’x at 17.)
[28] This appeal ensued.
Discussion and Decision Sufficiency of the Evidence [29] Miske challenges the sufficiency of the evidence as to his convictions for Rape
and Criminal Deviate Conduct, specifically directing our attention to the
elevation of these offenses to Class A felonies based upon the use or threat of
deadly force in committing these offenses.
[30] Our standard of review in challenges to the sufficiency of evidence is well
settled. We consider only the probative evidence and reasonable inferences
supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do
not assess the credibility of witnesses or reweigh evidence. Id. We will affirm
the conviction unless “no reasonable fact-finder could find the elements of the
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-619| May 15, 2015 Page 9 of 27 crime proven beyond a reasonable doubt.” Id. (quoting Jenkins v. State, 726
N.E.2d 268, 270 (Ind. 2000)). “The evidence is sufficient if an inference may
reasonably be drawn from it to support the verdict.” Id. at 147 (quoting Pickens
v. State, 751 N.E.2d 331, 334 (Ind. Ct. App. 2001)).
[31] To convict Miske of Rape, as charged, the State was required to prove beyond a
reasonable doubt that Miske knowingly or intentionally had sexual intercourse
with V.P., when V.P. was compelled by force or imminent threat of force, and
where Miske committed the offense using or threatening to use deadly force.
I.C. §§ 35-42-4-1(a) & (b)(1); App’x at 18. To convict Miske of two counts of
Criminal Deviate Conduct, as charged, the State was required to prove that
Miske knowingly or intentionally caused V.P. to submit to deviate sexual
conduct—once involving his penis and V.P.’s mouth, and once involving his
penis and V.P.’s anus—when V.P. was compelled by force or imminent threat
of force, and where Miske committed the offense using or threatening to use
deadly force. I.C. §§ 35-42-4-2(a) & (b)(1); App’x at 19-20.
[32] “Deadly force,” as used in the statutes for Rape and Criminal Deviate Conduct,
is “force that creates a substantial risk of serious bodily injury.” I.C. § 35-31.5-
2-85. As used in the statutory definition for “deadly force,” “serious bodily
injury” is “bodily injury that creates a substantial risk of death or that causes:
(1) serious permanent disfigurement; (2) unconsciousness; (3) extreme pain; (4)
permanent or protracted loss or impairment of the function of a bodily member
or organ; or (5) loss of a fetus.” I.C. § 35-31.5-2-292. Miske contends that there
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-619| May 15, 2015 Page 10 of 27 was insufficient evidence to establish that the force he used or threatened to use
against V.P. created a substantial risk of serious bodily injury.
[33] Arguing thus, Miske directs us to cases in which a defendant both verbally
threatened to kill a rape victim and used force to cut off a victim’s breathing. In
those cases, the Indiana Supreme Court affirmed the defendants’ convictions
for rape involving the use or threat of deadly force. See Harper v. State, 474
N.E.2d 508 (Ind. 1985); Smith v. State, 455 N.E.2d 606 (Ind. 1983) (holding in
each case sufficient evidence of threat to use deadly force where a defendant
disrupted air flow while making verbal threats of harm). Miske contrasts those
cases with his own, arguing that he neither used deadly force nor threatened it,
and that V.P.’s subjective belief is insufficient to sustain his convictions.
[34] The evidence that favors the verdict is that Miske repeatedly strangled V.P.,
pulled her up by her hair and threw her around the home several times, caused
V.P.’s head to hit a wall, and made V.P. submit to multiple instances of oral,
vaginal, and anal sexual intercourse. V.P. was treated for bleeding from her
rectum, felt pain while Miske forced her to participate in anal sexual
intercourse, and complained of vaginal, rectal, and head pain at the hospital
during treatment. V.P. also indicated to Miske on several occasions that she
was afraid he would kill her, but Miske continued on in his abuse. Thus, while
Miske is correct that there is no evidence that he expressly threatened to kill
V.P., his conduct throughout the sustained abuse he imposed upon V.P. before
and after she expressed to him her fear that he would kill her makes Miske’s case
akin to those he tries to distinguish away.
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-619| May 15, 2015 Page 11 of 27 [35] We conclude there was sufficient evidence from which a jury could infer that
Miske’s conduct caused either a substantial risk of death or extreme pain, or
amounted to a threat of a substantial risk of death or extreme pain. We
accordingly find no error in the jury’s verdict on the convictions for Rape and
Criminal Deviate Conduct, as Class A felonies.
Double Jeopardy [36] Miske’s appeal challenges his convictions for Criminal Confinement, Battery,
and Domestic Battery as being barred under double jeopardy principles.
[37] The Indiana Constitution provides, “No person shall be put in jeopardy twice
for the same offense.” Ind. Const. art. 1, sec. 14. Indiana’s double jeopardy
doctrines include a statutory elements test and an actual evidence test. Williams
v. State, 889 N.E.2d 1274, 1278 (Ind. Ct. App. 2008) (citing Davis v. State, 770
N.E.2d 319, 323 (Ind. 2002)), trans. denied. Basing his contentions in the
evidence adduced at trial, Miske argues that his convictions for Criminal
Confinement, Battery, and Domestic Battery all are barred as a result of his
conviction for Rape.
[38] The actual evidence test bars multiple convictions “if there is ‘a reasonable
possibility that the evidentiary facts used by the fact-finder to establish the
essential elements of one offense may also have been used to establish the
essential elements of a second challenged offense.’” Davis, 770 N.E.2d at 323
(quoting Richardson v. State, 717 N.E.2d 32, 53 (Ind. 1999)). The actual
evidence test is not violated—and thus, a conviction will not be vacated—if
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-619| May 15, 2015 Page 12 of 27 “‘the evidentiary facts establishing the essential elements of one offense also
establish only one or even several, but not all, of the essential elements of a
second offense.’” Id. (quoting Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002))
(emphasis in original).
[39] Directing us to these principles, Miske argues that his Criminal Confinement
conviction must fail because the evidence used to convict him of Rape is the
same evidence used to convict him of Criminal Confinement. Our supreme
court observed in Gates v. State that “one who commits rape or criminal deviate
conduct necessarily ‘confines’ the victim at least long enough to complete such
a forcible crime.” 759 N.E.2d 631, 632 (Ind. 2001). But “entitlement to relief
depends upon whether the confinement exceeded the bounds of the force used
to commit the rape and criminal deviate conduct.” Id.
[40] Here, Miske’s confining conduct clearly exceeded the force necessary to
commit the rape. Miske did not simply confine V.P. long enough to thrice
engage in a cycle of oral, vaginal, and anal sex. Miske dragged V.P. from the
living room to the bedroom by her hair, even after V.P. told Miske that she
would do whatever he wanted if he did not kill her, and Miske held onto V.P.’s
hair throughout his forced sexual conduct with V.P. And all of this occurred
after Miske strangled V.P. several times and pulled her off the ground by her
hair on multiple occasions. This conduct “exceeded the bounds of the force
used to commit the rape,” see id., and we accordingly find no violation of
double jeopardy principles in Miske’s conviction for Criminal Confinement.
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-619| May 15, 2015 Page 13 of 27 [41] Miske also argues that his convictions for Battery and Domestic Battery must
fail, as well, because Battery and Domestic Battery here are lesser-included
offenses associated with the commission of Rape. Again, we disagree. Miske
grabbed V.P. by her hair multiple times, pulling her off the couch and the floor,
throwing her back on the ground, and once struck V.P.’s head against a wall.
In addition, on January 3, 2014, two days prior to the sexual assault on V.P.,
Miske struck V.P.’s arm and forced her to the ground, leaving bruising on the
inside of V.P.’s arm. None of these acts were inherent to the commission of
Rape or Criminal Deviate Conduct. We accordingly find no violation of
double jeopardy principles in either the Battery or Domestic Battery
convictions.
Continuing Crime Doctrine [42] We turn to Miske’s next issue, whether the trial court erred by contravening the
continuous crime doctrine, when it convicted him of multiple offenses in a
single, continuous transaction.
[43] “The continuing crime doctrine essentially provides that actions that are
sufficient in themselves to constitute separate criminal offenses may be so
compressed in terms of time, place, singleness of purpose, and continuity of
action as to constitute a single transaction.” Firestone v. State, 838 N.E.2d 468,
472 (Ind. Ct. App. 2005). The doctrine “reflects a category of Indiana’s
prohibition against double jeopardy.” Chavez v. State, 988 N.E.2d 1226, 1228
(Ind. Ct. App. 2013) (citations and quotation marks omitted), trans. denied. The
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-619| May 15, 2015 Page 14 of 27 doctrine “defines those instances where a defendant’s conduct amounts only to
a single[,] chargeable crime,” and “prevents the state from charging a defendant
twice for the same continuous offense.” Id. (citations and quotation marks
omitted). Citing Chavez and Firestone, and other cases, Miske argues that all of
his convictions, except for that of Resisting Law Enforcement, were for actions
that were part of a continuing crime and that, as a result, “his actions should be
considered as one continuous crime, with only one sentence.” (Appellant’s Br.
at 12.)
[44] Addressing a similar case to this one, involving charges of oral, vaginal, and
anal intercourse, the Indiana Supreme Court has stated that the resolution of
claims under the continuous crime doctrine “is extremely fact-sensitive and is
properly resolved by determining whether the challenged offenses are the ‘same
offense’ under the actual evidence test of the Indiana Double Jeopardy clause.”
Collins v. State, 717 N.E.2d 108, 110 (Ind. 1999). The Collins Court held that a
single sequence of time in which a defendant forced a thirteen-year-old victim
to engage in vaginal intercourse, oral intercourse, vaginal intercourse again, and
then anal intercourse, there was “no reasonable possibility” that the evidentiary
facts used to establish criminal deviate conduct based upon oral intercourse
were the same as those used to establish criminal deviate conduct based upon
anal intercourse. Id. at 111. The Collins Court accordingly affirmed the
multiple convictions. Id.
[45] Here, Miske thrice forced V.P. to engage in sexual, oral, and anal intercourse,
and Miske was charged once each with Rape, Criminal Deviate Conduct as to
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-619| May 15, 2015 Page 15 of 27 oral intercourse, and Criminal Deviate Conduct as to anal intercourse. We
cannot conclude that there was a reasonable possibility that the jury relied on
the same evidence to establish these separate convictions, and accordingly we
leave these convictions undisturbed.
[46] We turn next to Miske’s conviction for Strangulation. V.P. testified that Miske
sat on her and choked her, cutting off her breathing, several times during the
early morning hours of January 5, 2014, and these acts were distinguishable
from other harms Miske imposed upon her during his offenses. For the same
reason as above, then—we cannot conclude that there was a reasonable
possibility the jury relied upon evidence of strangulation to establish both it and
other offenses—we leave Miske’s conviction for Strangulation undisturbed.
[47] Because we have already concluded that Miske’s convictions for Criminal
Confinement, Battery, and Domestic Battery satisfy the requirements of the
actual evidence test, we leave these convictions undisturbed, as well.
[48] Finally, we turn to Miske’s conviction for Intimidation. To convict him of
Intimidation, the State was required to prove beyond a reasonable doubt that
Miske knowingly or intentionally communicated a threat—namely, to commit
a forcible felony—to V.P., with the intent that V.P. engage in conduct against
her will or be placed in fear of retaliation for a prior lawful act. I.C. 35-42-2-1;
App’x at 22. Here, after he had repeatedly sexually abused V.P. and the two
were on opposite ends of the bed, Miske vacillated between stating he would
kill V.P. and telling V.P. she could call the police and that he would not hurt
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-619| May 15, 2015 Page 16 of 27 her, but that he would not go down without a fight. It was only after Miske fell
asleep that V.P. finally left the bedroom and got her phone to call police. This
is separate from any evidence that Miske threatened V.P. in order to force her
to engage in sexual conduct with him. Accordingly, we find no reasonable
possibility that the jury relied upon other conduct by Miske in its guilty finding
as to the charge of Intimidation. We thus leave this conviction undisturbed.
[49] Having found no double jeopardy concerns by application of the actual
evidence test under the continuing crime doctrine, we affirm all of Miske’s
Aggravating Circumstances and Appellate Rule 7(B) [50] We turn now to the first of Miske’s two challenges to the trial court’s sentencing
decision.
[51] Miske argues that the trial court abused its discretion when it found certain facts
as aggravating circumstances. Our supreme court has held:
[T]he imposition of sentence and the review of sentences on appeal should proceed as follows: 1. The trial court must enter a statement including reasonably detailed reasons or circumstances for imposing a particular sentence. 2. The reasons given, and the omission of reasons arguably supported by the record, are reviewable on appeal for abuse of discretion. 3. The relative weight or value assignable to reasons properly found or those which should have been found is not subject to review for abuse. 4. Appellate review of the merits of a sentence may be sought on the grounds outlined in Appellate Rule 7(B).
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-619| May 15, 2015 Page 17 of 27 Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218 (Ind. 2007).
[52] We review sentencing decisions for an abuse of discretion. Id. at 490. While a
trial court may abuse its discretion by issuing a sentencing statement that
“omits reasons that are clearly supported by the record and advanced for
consideration,” a trial court can no longer “be said to have abused its discretion
in failing to ‘properly weigh’ such factors.” Id. (quoting Jackson v. State, 729
N.E.2d 147, 155 (Ind. 2000); Morgan v. State, 675 N.E.2d 1067, 1073-74 (Ind.
1996)). Where the trial court has abused its discretion, we will not reverse a
sentence if it is not inappropriate under Appellate Rule 7(B). Felder v. State, 870
N.E.2d 554, 558 (Ind. Ct. App. 2007) (citing Windhorst v. State, 868 N.E.2d 504,
507 (Ind. 2007)).
[53] Miske challenges the trial court’s oral sentencing statement and written
sentencing order, which found as aggravating circumstances that Miske’s
“Indiana Risk Assessment Score was high,” that Miske “failed to take
responsibility of his crime by pleading not guilty,” and the “nature and
circumstances of the crime.” App’x at 8-9. We address each in turn.
[54] Turning first to the use of the Indiana Risk Assessment Score, the Indiana
Supreme Court has held that such assessments “are not in the nature of, nor do
they provide evidence constituting, an aggravating or mitigating circumstance,”
but courts are encouraged to use “evidence-based offender assessment
instruments…in crafting a penal program tailored to each individual
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-619| May 15, 2015 Page 18 of 27 defendant.” Malenchik v. State, 928 N.E.2d 564, 575 (Ind. 2010). We
accordingly agree with Miske that the trial court abused its discretion when it
found as an aggravating circumstance his high score on the Indiana Risk
Assessment.
[55] Turning next to the trial court’s finding that Miske’s failure to take
responsibility for his offenses by entering a guilty plea was an aggravating
factor, we observe that “a defendant who pleads guilty deserves to have
mitigating weight extended to the guilty plea in return.” Francis v. State, 817
N.E.2d 235, 238 (Ind. 2004). The trial court may not find as an aggravating
circumstance a defendant’s failure to enter a guilty plea, but that failure to show
remorse may be properly found as an aggravating circumstance. Fredrick v.
State, 755 N.E.2d 1078, 1084 (Ind. 2001). Here, the trial court’s order appears
not to address the question of remorse, but rather finds as an aggravating
circumstance per se Miske’s decision not to enter a guilty plea instead of
proceeding to trial. We therefore agree with Miske that the trial court abused
its discretion in reaching this finding.
[56] Miske also challenges the trial court’s use of “the nature and circumstances of
the crime” as an aggravating circumstance. “Generally, the ‘nature and
circumstances’ of a crime is a proper aggravating circumstance.” McCann v.
State, 749 N.E.2d 1116, 1120 (Ind. 2001). In its oral sentencing statement, the
trial court specified as its basis for the use of this aggravating circumstance “the
damage and loss to the victim which exceeds the elements required for the
convictions.” (Tr. at 376-77.) Miske contends this was not sufficiently specific.
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-619| May 15, 2015 Page 19 of 27 In light of the facts adduced into evidence at trial, we disagree; a trial court’s
sentencing statement needs to be “reasonably detailed” and “supported by the
record,” Anglemyer, 868 N.E.2d and 491, and such is the case here.
[57] Even where a trial court abuses its discretion in finding one or more aggravating
or mitigating circumstances, such abuse of discretion does not itself require
overturning the sentencing order as a whole so long as the sentence is otherwise
appropriate under Appellate Rule 7(B). Felder v. State, 870 N.E.2d at 558. We
accordingly turn our attention to that question.
[58] The authority granted to this Court by Article 7, § 6 of the Indiana Constitution
permitting appellate review and revision of criminal sentences is implemented
through Appellate Rule 7(B), which provides: “The Court may revise a
sentence authorized by statute if, after due consideration of the trial court’s
decision, the Court finds that the sentence is inappropriate in light of the nature
of the offense and the character of the offender.” Under this rule, and as
interpreted by case law, appellate courts may revise sentences after due
consideration of the trial court’s decision, if the sentence is found to be
inappropriate in light of the nature of the offense and the character of the
offender. Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind. 2008); Serino v. State,
798 N.E.2d 852, 856-57 (Ind. 2003). The principal role of such review is to
attempt to leaven the outliers. Cardwell, 895 N.E.2d at 1225.
[59] Miske was convicted of nine separate offenses:
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-619| May 15, 2015 Page 20 of 27 One count of Rape and two counts of Criminal Deviate Conduct, each as a Class A felony: each offense carried a sentencing range running from twenty to fifty years imprisonment, with an advisory term of thirty years. I.C. § 35-50-2-4(a). Miske was sentenced to forty-five years imprisonment for each of his three offenses. Criminal Confinement, as a Class C felony: sentencing range running from two to eight years imprisonment, with an advisory term of four years. I.C. § 35-50-2-6(a). Miske was sentenced to six years imprisonment. Intimidation, Strangulation, and Domestic Battery, each as a Class D felony: each offense carried a sentencing range running from six months to three years imprisonment, with an advisory term of eighteen months. I.C. § 35-50-2-7(a). Miske was sentenced to two years imprisonment for each of his three offenses. Battery and Resisting Law Enforcement, each as a Class A misdemeanor: each offense carried a sentencing range of up to one year imprisonment. I.C. § 35-50-3-2. Miske was sentenced to one year imprisonment for each of his two offenses.
[60] Running the sentences consecutively to one another, as limited by statutory
provisions, the trial court sentenced Miske to an aggregate term of
imprisonment of 145 years.
[61] Turning first to the nature of Miske’s offenses, the evidence at trial that favors
the judgment is that after arriving home intoxicated, Miske repeatedly
strangled, battered, raped, sodomized, and forced V.P. to perform oral sex upon
him. V.P. suffered injuries to her neck, face, arm, vagina, and rectum, and V.P.
suffered hair loss as a result of Miske picking her up and dragging her by her
hair. Some of this conduct occurred in the sight of one of V.P.’s children, and
two of her children overheard the entire episode—including listening to their
mother begging Miske not to kill her. After intimidating V.P. into not calling
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-619| May 15, 2015 Page 21 of 27 police, he later said she could do so, but indicated he would not be arrested
easily; he was not, and three police officers were required to subdue him.
[62] In her victim’s impact statement, V.P. indicated that Miske’s offenses, which
were witnessed or overheard by two of her children, had negatively affected her
children and herself. One child began displaying extraordinarily violent
behavior in daycare settings after the incident. V.P. continued to cope with
anxiety, humiliation, sleeplessness, and feeling unsafe. Miske’s offenses may
not be among the worst of the worst, but they are certainly exemplary and
warrant sentences above the advisory terms set forth by our legislature.
[63] The trial court found as aggravating circumstances in its sentencing statement,
exclusive of those we have found to be improper numerous aspects of Miske’s
character, including his criminal history, use of drugs and alcohol, failed prior
opportunities at rehabilitation, probation violation, the presence of the minor
children, and efforts to violate the no-contact order. All of these, together with
the repetitive nature of Miske’s brutal assault on V.P. also provides sufficient
basis for the trial court to order consecutive sentences. We cannot conclude
that Miske was in any way prejudiced by any claimed failure on the part of the
trial court to identify one or more specific aggravating circumstances that
supported consecutive sentences.
[64] Turning to Miske’s character, we recognize, as did the trial court, that Miske
served in the U.S. Marine Corps and remained generally well-employed as a
welder. We also note Miske’s difficult childhood, including placement in
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-619| May 15, 2015 Page 22 of 27 facility-based foster care because of his mother’s drug addictions, his mental
health issues, and his role helping to support V.P.’s children and a child of his
own from a prior relationship in South Carolina.
[65] However, before, during, and after his discharge from the Marine Corps, and
during his youth, Miske accumulated an extensive history of juvenile and adult
criminal offenses. Beginning at age thirteen, while a minor living in Indiana,
Miske was adjudicated a delinquent for acts that, if prosecuted as an adult,
constituted Battery and Theft. As an adult, in 2006 and 2007, Miske was
convicted of a series of misdemeanors in North Carolina, including several
convictions for Assault, as well as Driving While Intoxicated and other traffic-
related offenses; one of the Assault convictions was upon a woman, and a no-
contact order was entered against Miske in that case.
[66] After he returned to Indiana, Miske was convicted of Strangulation and Public
Intoxication. Upon being convicted of Strangulation, Miske was placed on
probation, but violated his probation by committing the instant offenses.
During the pendency of this case, Miske acted contrary to a no-contact order
put into place by the trial court and attempted to make telephone contact with
V.P. multiple times on May 23, 2014. Miske also had his father contact V.P.
with an apparent offer to plead guilty if she allowed Miske to say goodbye to
the children. Miske also illegally used alcohol and drugs, including underage
drinking and engaging in marijuana use; he admitted to the latter of these
during trial in this case, and tested positive for marijuana use during the
pendency of prior criminal proceedings.
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-619| May 15, 2015 Page 23 of 27 [67] Miske’s offenses here were horrendous, and reflect his bad character. In that
light, we cannot conclude that his sentence was inappropriate.
Conclusion [68] The State adduced sufficient evidence at trial to sustain Miske’s convictions for
Rape and Criminal Deviate Conduct, as Class A felonies. None of his
convictions are barred on double jeopardy grounds under the actual evidence
test, or under the continuing crime doctrine. While the trial court abused its
discretion in finding certain aggravating circumstances, we cannot conclude
that the trial court’s sentence was inappropriate. We accordingly affirm the
trial court in all respects.
[69] Affirmed.
Barnes, J., concurs.
Riley, J., concurs in part and dissents in part with separate opinion.
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-619| May 15, 2015 Page 24 of 27 IN THE COURT OF APPEALS OF INDIANA
James Miske, Jr., Court of Appeals Case No. 79A02-1409-CR-619 Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff
Riley, Judge, concurring in part and dissenting in part.
[70] Although I concur with the majority’s conclusions regarding the sufficiency of
the evidence, double jeopardy/the continuing crime doctrine, and the
aggravating sentencing factors, I must respectfully dissent from the majority’s
decision to affirm Miske’s 145-year sentence. Pursuant to Indiana Appellate
Rule 7(B), I would exercise the authority of this court to revise Miske’s sentence
to an aggregate term of fifty-five years, fully executed in the Department of
Correction.
[71] It is clear from the record that the nature of Miske’s offense was nothing short
of deplorable. He drunkenly battered, strangled, raped, sodomized, and
coerced fellatio from his fiancée. Additionally, Miske made V.P. fear for her
life, he inflicted physical injuries to her (and likely caused emotional damage to
the children who were present in the home), and he fought with the arresting
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-619| May 15, 2015 Page 25 of 27 police officers. As the majority found, these and other circumstances
undoubtedly warrant an aggravated sentence. Nevertheless, it is also apparent
from the record that the charges of Class A felony rape and two counts of Class
A felony criminal deviate conduct arose from a single episode of criminal
conduct.
[72] An “episode of criminal conduct” is defined as “offenses or a connected series
of offenses that are closely related in time, place, and circumstance.” Ind. Code
§ 35-50-1-2(b) (2013). To determine “whether multiple offenses constitute an
episode of criminal conduct, the focus is on the timing of the offenses and the
simultaneous and contemporaneous nature, if any, of the crimes.” Slone v.
State, 11 N.E.3d 969, 972 (Ind. Ct. App. 2014). Here, the nature of the offense
is that the oral sex, vaginal sex, and anal sex—although distinctly chargeable
crimes—all occurred as part of one continuous act, at the end of which, Miske
ejaculated and did not further engage in any sexual conduct with V.P. See id.
(considering whether the burglaries were “continuous”). Although the trial
court had the discretion to order consecutive sentences, I find that it is more
appropriate based on the continuous nature of these offenses that the sentences
should be served concurrently.10
10 For non-violent crimes, the trial court is limited in its imposition of consecutive sentences: “the total of the consecutive terms of imprisonment for felony convictions arising out of an episode of criminal conduct shall not exceed the advisory sentence for a felony which is one (1) class of felony higher than the most serious of the felonies for which the person has been convicted.” I.C. § 35-50-1-2(c) (2013). In this case, because the offenses of rape and criminal deviate conduct are defined as “crime[s] of violence,” the trial court was free to order consecutive sentences. I.C. § 35-50-1-2(a)(8)-(9) (2013).
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-619| May 15, 2015 Page 26 of 27 [73] As to the character of the offender, I agree with the majority that Miske exhibits
very few redeeming qualities to merit appellate sentence revision. Nonetheless,
I find the fact that Miske served our country in the United States Marine Corps
and received an honorable discharge supports the revised sentence. In light of
the continuous nature of the rape and the criminal deviate conduct, along with
Miske’s military service, I would remand with instructions for the trial court to
order that Miske’s forty-five-year sentences on each of his three Class A felonies
be served concurrently, with the ten-year cap on the remaining charges to be
served consecutively thereto, resulting in an aggregate sentence of fifty-five
years. In all other respects, I would affirm the trial court.
Court of Appeals of Indiana | Memorandum Decision 79A02-1409-CR-619| May 15, 2015 Page 27 of 27